Criminal Law

Criminal Law is public law that deals with crimes and their prosecution (compare civil law). Substantive criminal law defines crimes, and procedural criminal law sets down criminal procedure. Substantive criminal law was originally common law for the most part. It was later codified and is now found in federal and state statutory law.

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The basic rights of a citizen under arrest are stated in the Fifth, Sixth and Eighth Amendments of the "Bill of Rights" of the United States Constitution.

"No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law…." (Fifth Amendment).

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense." (Sixth Amendment).

Since the adoption of the Fourteenth Amendment to the Constitution, the states have also had to guarantee these rights. This amendment provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States . . ."

If you are arrested, contact an experienced criminal lawyer as soon as possible to protect your rights.

Do not resist a law enforcement officer who attempts to arrest you - even if you are innocent. The fact that you are innocent will not make the arrest illegal if the officer's action conformed to the requirements of a legal arrest as stated above.

If the arrest is legal and you resist, you may be guilty of the crime of resisting lawful arrest. If the arrest is illegal, you are entitled to bring an action against the law enforcement officer for false arrest.

It is best not to resist a citizen's arrest. Although you can't be prosecuted for resisting arrest, you may be found guilty of assault and battery.

The person making a citizen's arrest cannot be liable for damages for false arrest if he had reasonable ground for believing a crime had taken place and you are the person who committed it.

Do not resist a law officer's attempt to search or "frisk" you. It is legal for an arresting officer to search your person and the area in your immediate presence.

Even if he does not arrest you, an officer - after identifying himself - may stop you in any public place if he has reason to believe that you have committed, are committing or are about to commit a crime. He may demand your name and address and an explanation of your actions. If he reasonably suspects that he or another is in danger of being attacked, he may search you for weapons.

The U.S. Supreme Court has ruled that as soon as you are taken into custody you must be informed of the following: (1) You have a Constitutional right to remain silent. (2) Anything you say can be held against you. (3) You have the right to legal counsel and that if you cannot afford a lawyer, one will be appointed for you. (4) If you choose, you may have a lawyer present during interrogation. (Miranda Rights).

In addition to advising you of your rights, the arresting authorities must respect your rights. For example, you cannot legally be required or forced by a police officer or any one else to talk, to answer questions, or sign any papers. If by threats, by persistent questioning or other means of coercion, you are forced to give incriminating information, you can prevent its use against you in court.

Within a reasonable time after you have been taken into custody you have a right to make a reasonable number of telephone calls or otherwise communicate with an attorney of your choice and a member of your family. If you are transferred to a new place of custody, this right of communication is renewed.

You have a right to an itemized receipt for all money and property taken from your person after you are taken into custody.

You have a right to be "booked" within a reasonable period of time. "Booking" is the entry of a charge against you in record called the "arrest book" or "police blotter."

Should your detention go beyond a reasonable period of time without booking (more than several hours or perhaps overnight), your attorney may go to a judge and obtain a writ of habeas corpus. This is a Court order instructing the police to bring you before the Court so that a judge may decide whether you are being held lawfully.

You have a right to apply for and post bail as a means of obtaining your release from custody. The Court will normally set bail, even with a charge of murder or other serious crimes, unless the proof is evident or the presumption is great that the person is guilty of the crime.

Bail is the money or other security you deposit with the Court as an assurance that you will appear for trial. The Court will accept property (real estate) as bail provided certain detailed conditions are fulfilled.

If there is a warrant for your arrest, the amount of bail will be stated on the warrant. For certain minor offenses the amount of bail is fixed by a judge and you have a right to be brought before a judge for that purpose at the next regular Court session. Or, you may be released on your own recognizance - that is, your own word that you will keep your date in Court.

You have a right to a reasonable time to prepare a defense before being tried in Court. Whether or not you declined your right to be represented by counsel during police interrogation, you have the right to be represented by counsel in Court. You are entitled to a reasonable time to obtain a lawyer of your own choosing. If you want a lawyer and cannot afford one, the Court must appoint one to defend you.

You are entitled to know the charge against you and to have, without cost, a copy of the formal paper that contains the charge.

You are entitled to plead "not guilty." If you do so, you will be tried by an impartial jury, unless you specifically waive your right to a jury trial.

You are not required to testify if you do not wish to do so. If you do not testify, neither the judge nor the jury can consider your silence as evidence of guilt. In the eyes of the law you are innocent unless proven guilty beyond a reasonable doubt by the evidence presented in Court.

How you plead and whether you testify are vitally important questions and you should have the advice of a lawyer.

Habitual Criminal Law is a law that imposes greater penalties if a convicted defendant has previously been convicted of one or more crimes. Some such laws have been challenged on the ground of violating the prohibition on cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution or on the ground of being an ex post facto law.

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